McGoey v. Brace, 1-08-2508.
| Court | United States Appellate Court of Illinois |
| Citation | 918 N.E.2d 559 |
| Docket Number | No. 1-08-2508.,1-08-2508. |
| Parties | Ann Catherine McGOEY, Plaintiff-Appellant, v. Betsy BRACE, Michael Edwards, Barbara Johnson, Melissa Mizel, and June Parmenter, Defendants-Appellees. |
| Decision Date | 16 October 2009 |
v.
Betsy BRACE, Michael Edwards, Barbara Johnson, Melissa Mizel, and June Parmenter, Defendants-Appellees.
[918 N.E.2d 560]
Thomas J. Ramsdell, Anthony S. Hind, Ramsdell & Hind, Chicago, IL, for Appellant.
Karl L. Felbinger, Felbinger & Felbinger, Northbrook, IL, for Appellees.
Justice JOSEPH GORDON delivered the opinion of the court:
This case concerns a driveway and sidewalk easement upon the land of plaintiff Ann Catherine McGoey that the defendants,
owners of the four adjacent properties, use for access to the nearby public road. McGoey alleges that this easement, which is located only a few feet from her home, causes severe flooding which at times has rendered her home uninhabitable. She therefore wishes to move the easement 70 feet to the east upon her land, which, she alleges, will not interfere with the use of the easement. However, the defendants have refused to consent to such a move.
McGoey thus brought the instant suit against the owners of the easement, seeking a judicial declaration that she was permitted to move the easement. The court granted defendant Betsy Brace's motion pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)) to dismiss. It found that, under the rule articulated in Sullivan v. Bagby, 335 Ill. 192, 195-96, 166 N.E. 449 (1929), no "substantial" change in an easement is permitted without the consent of all owners of the easement; it further found that McGoey's proposed change was substantial as a matter of law. McGoey now appeals. For the reasons that follow, we reverse and remand.
In 1940, the owners of 929, 933, 935, 939, and 941 Tower Road, Winnetka, Illinois, entered into a written agreement giving them a driveway and sidewalk easement over 935 and 941 Tower Road for purposes of ingress and egress to and from the properties.1 The properties have since been sold. McGoey, the plaintiff, currently owns 941 Tower Road. Defendant June Parmenter owns 929, defendant Betsy Brace owns 933, defendant Barbara Johnson owns 935, and defendants Melissa Mizel and Michael Edwards own 939.
In her first amended complaint, which frames the issues now before us, McGoey alleged that the location and size of the driveway contributes to poor storm water drainage on her property, which in turn causes frequent and severe flooding in her home. This flooding, she stated, causes rain water and raw sewage to intrude upon her downstairs bedroom, basement, and garage, rendering her home uninhabitable for reasons of health and safety. The flooding also fosters the growth of mold and has a negative effect on the structural integrity of her house. McGoey further alleged that relocating the driveway 70 feet to the east upon her property would help solve her flooding problems without having a negative impact upon the defendants' drainage, safety, or use and enjoyment of their properties. She proposed to move the driveway at her own expense and to leave the existing driveway in place until the new driveway was complete. Nevertheless, McGoey said, defendants refused to allow her to relocate the easement. She later clarified that, while three of the five defendants were amenable to the idea of relocation, the remaining defendants would not consent to such a change.
Therefore, McGoey sought an injunction barring defendants from refusing to permit the relocation of the easement. She additionally requested that the court "declare and adjudicate the rights and duties of Plaintiff and Defendants pursuant to the easement." In particular, she sought a declaration that she had the right to relocate the easement as long as the relocation would not significantly lessen the utility of the easement, increase the burdens upon the defendants as owners of the easement, or frustrate the purpose for which the easement was created.
Defendant Betsy Brace filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2006)). The trial court granted her motion. It found that the controlling principle, stated by our supreme court in Sullivan, 335 Ill. at 195-96, 166 N.E. 449, was that no "substantial" change to an easement was permitted without the consent of all parties to that easement. The court then stated:
"While it is conceivable that a relocation of the driveway could be so slight as to be de minimis and therefore not `substantial' under the principals [sic] of Sullivan, we do not have such a case here. The current driveway crosses through plaintiff and Johnson's properties. Plaintiff and Johnson seek to move the easement across a significant area of the affected lots, to the east property line of each of their respective properties. Such a move is substantial by any definition and therefore requires the consent of all five property owners."
Therefore, the court found that McGoey had no right to relocate the driveway under the terms of the easement.2
McGoey timely filed the instant appeal.
McGoey contends that the trial court erred in granting the motion to dismiss for two reasons, both of which are disputed by defendant Brace, the only defendant to have filed an appellate brief in this matter. First, McGoey contends that the rule articulated in Sullivan only applies where a change to an easement effects a change in the identity of the burdened party, and there is no such change under the facts as alleged in her complaint, since her estate will remain the servient estate even after the proposed relocation of the driveway. Second, she contends that even if the Sullivan standard applies, a servient owner's modification to an easement is not "substantial" under Sullivan unless it decreases the utility of the easement, increases the burdens on the owner of the easement in her use and enjoyment of the easement, or frustrates the purpose of the easement. Alternately, she argues, to the extent that the Sullivan standard is more rigid in its definition of substantiality, it should be abandoned in favor of a more flexible standard incorporating the above principles. Either way, according to her, the question of whether a proposed change to an easement compromises the rights of the easement holder is necessarily a fact-intensive issue which cannot properly be decided on the pleadings. We consider these contentions in turn.
A ruling on a section 2-615 motion to dismiss presents a question of law; accordingly, our review is de novo. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 418-19, 266 Ill.Dec. 879, 775 N.E.2d 951, 961 (2002). Such a motion should only be granted where it appears that no set of
facts can be proven under the pleadings that would entitle plaintiff to relief. Zeitz v. Village of Glenview, 227 Ill.App.3d 891, 894-95, 169 Ill.Dec. 897, 592 N.E.2d 384, 387 (1992). In ruling upon a motion to dismiss, we consider all well-pleaded facts and all reasonable inferences that can fairly be drawn from those facts to be true. Zeitz, 227 Ill.App.3d at 894, 169 Ill.Dec. 897, 592 N.E.2d at 387.
The first point of contention between the parties is whether the Sullivan substantiality standard applies to the case at hand. McGoey argues that this standard only applies to cases where a change in servitude effects a change in the identity of the burdened party. We disagree.
The language in Sullivan that the trial court relied on in issuing its decision is as follows: "An easement once definitely settled and located cannot be changed by either party without the consent of the other, where such change results in a substitution of a servitude different from that which previously existed. This rule is applicable both to the owner of the easement and to the owner of the fee. Though a slight or immaterial change is not in violation of the rights of the parties, substantial changes may not be made." Sullivan, 335 Ill. at 195-96, 166 N.E. 449.
McGoey contends that, based upon this language, consent of all parties to an easement is only required for changes that "result [ ] in a substitution of a servitude different from that which previously existed." She further contends that a substitution of servitude only occurs where there is a change in the identity of the burdened party. Since her proposed relocation will not cause such a change — the easement will remain on her land, and her land will remain the servient estate — she argues that the consent requirement of Sullivan is inapplicable. However, a full reading of Sullivan does not support McGoey's interpretation of this phrase.
The parties in Sullivan were farmers with adjacent tracts of land. Sullivan, 335 Ill. at 193, 166 N.E. 449. A water course flowed from defendant's land onto plaintiff's land, and by mutual consent, defendant maintained a tile drain across the property of both parties for the water to run through. Sullivan, 335 Ill. at 193-94, 166 N.E. 449. The court found that this drain constituted an easement, and it further found that defendant did not have the right to re-lay the tile on his own land in a way that disconnected his portion of the drain from plaintiff's portion of the drain, thus causing flooding on plaintiff's land. Sullivan, 335 Ill. at 194-96, 166 N.E. 449. In coming to this decision, the Sullivan court undertook no discussion of whether defendant's adjustment of the tile constituted "a substitution of a servitude different from that which previously existed." Sullivan, 335 Ill. at 195-96, 166 N.E. 449. Rather, the court based its decision on the fact that defendant "had no right to make any substantial change in the drain." Sullivan, 335 Ill. at 196, 166 N.E. 449. From this, we conclude that the Sullivan court did not intend for substitution of servitude to be the exclusive form of change requiring consent of all parties to an easement. Rather, Sullivan requires consent...
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